Rural State Senator Concerned
About Water Marketing Plans

LUBBOCK — In Roberts County of the Texas Panhandle, wars rage over marketing water. A state senator who recently picked up neighboring Gray County during redistricting says he is concerned about ground water in the huge underground aquifer that lies beneath much of his district as well as seven states across the Great Plains.

Texas Senator Robert Duncan is vice chairman of the Senate's Natural Resources Committee and chairs the Agricultural Sub-committee.

"On the water marketing issue," Duncan says, "I have a lot of concerns about it. In my view, water is not like oil. A lot of the folks out there who are looking to put together purchasing groups and holding groups for water are approaching it from that perspective. In my view, water is a whole lot different than oil. Oil is a commodity that is traded. It's not imperative to the survival of this nation."

There are alternatives for oil, but not for water.

"Water is critical to the survival of this area," Duncan says. "It's critical to our way of life out here. It's critical to our economy. I have real concerns about folks who want to try to buy up water rights and then ship the water out of the area."

Because of his position in the Texas Senate, Duncan is involved with the regulation of ground water. In Texas, under the "rule of capture", a landowner owns the water beneath his property and can pump it and use it as he sees fit, providing he doesn't waste it or maliciously harm his neighbors. Since ground water doesn't recognize property boundaries, pumping on one property potentially lowers the water level on adjoining properties, the basis for the water wars in the Panhandle.

State government has chosen to keep the rule of capture and regulate ground water at the local level through ground water districts, but the way ground water districts are created and funded and the rules by which they must abide go back to the state legislature.

"I think what we did last session was important," Duncan says of the 2001 legislative session. "We gave the ground water districts the ability to regulate that activity, but I think we tied their hands a little bit too much. I'm looking at evaluating that aspect of it. We put some restrictions on some of the things they can do with regard to transfers out of the district, discriminations between transfers out of the district and other uses of water in the district."

Duncan doesn't expect any major initiatives concerning water when the legislature convenes in Austin next January, but he says there may be some steps to correct what he sees as problems with the current situation.

"I haven't made up my mind yet exactly what to do about it, but I'm looking at that because I do think that if we as a policy of this state have said that the ground water districts are the preferred method for regulating and governing the issues that arise out of the use of ground water, then we ought to give them the authority to do it," Duncan says.

"If we tie their hands, then we basically take that authority away and it becomes central authority, and I don't want that to happen. I think the ground water districts are in the best position to be able to make the decisions affecting the aquifer and the sustainability of the aquifer over a period of years."

Duncan says the problem is how to control and conserve ground water in the state.

"We've got to be able to deal with that on a comprehensive basis at the ground water district level," Duncan says, "and give those folks the tools to do it."

Ground water districts are accountable to voters and to the taxpayers of their regions, Duncan notes.

"That system has been set up, and I think it can work," he opines. "We just need to let it work."

Policy aside, Duncan has concerns over specific plans to market water in West Texas.

"I'm not at all impressed with Mr. Pickens' idea," Duncan says of T. Boone Pickens and his Mesa water marketing group, "although I can understand some of the time where he's coming from with regard to the fact that if he doesn't sell his water, somebody else is going to sell it for him."

Businessman and rancher T. Boone Pickens and his neighbors in Roberts County, operating as Mesa Water Inc., want to pump water from the Ogallala Aquifer beneath their ranches and sell it to major metropolitan areas elsewhere in the state. Pickens and his associates say that if they don't pump and market their water, others, some of whom have already started pumping ground water for cities in the region, will suck the aquifer beneath their ranches dry.

While Duncan says he doesn't like Mesa's plans, he admits that he sees Pickens' side of the argument.

Nor is Pickens' plan the only one that concerns Duncan.

Salem Abraham, a businessman from Canadian, Texas, wants to pump water from the western Panhandle, combine it with surface water in New Mexico and provide water for communities along the Texas-New Mexico line in both states.

"Mr. Abraham has, I believe, looked at some ideas and apparently he holds the option on some water rights over in Hartley County," Duncan says. "There has been some discussion about the notion that a pipeline could be built and water could be blended with water out of Ute Lake in New Mexico and then routed out through New Mexico and back into Texas. The viability of that concept is based on the fact that the federal government would be able to and willing to fund the pipeline. That's always the cost in moving underground water around and using it in different regions."

While Abraham's plan could benefit some of his constituents, he has doubts whether or not it will work.

"I'm not so sure it's a good idea," Duncan says. "I have a lot of concerns about it."

Duncan says he wants to find sources of water, other than underground water, for municipalities rather than raiding the Ogallala Aquifer.

"In some areas, that's not possible," he says, "because we simply don't have rivers and streams and reservoirs that are available to provide water to supply some communities."

He says he favors Texas Gov. Rick Perry's plan for desalinization to provide water for the state as a whole.

The thing that is attractive to Duncan about Abraham's proposal is that two water planning regions, Regional Water Planning Group A, the Texas Panhandle, and Group O, the Texas South Plains, have come together to look at a joint project, and they are trying to deal with issues that they both share.

"It was attractive to me to at least get the communities to collaborate," Duncan says. "I don't want to be somebody to say not to do something until I've looked at all of the issues."

Duncan says that while he has his doubts about Abraham's plan, he does want to see the results of a feasibility study that's being done.

"Abraham was willing put his own money into a study," Duncan notes.

Abraham is funding half of the estimated $75,000 study. Some of the other interested entities, including the Texas Cattle Feeders Association, the City of Hereford, the High Plains Water District in Lubbock and the City of Lubbock, were also willing to come up with some money for a feasibility study.

But an engineering study is one thing. Politics is another.

Duncan's real concern is that the relationship between Texas and New Mexico over the years concerning water has not been good.

There have been bitter disputes and a lawsuit over water in the Pecos River. Another dispute is boiling up over water from Elephant Butte Reservoir where the Rio Grande is dammed up at Truth or Consequences, N.M., before it flows south to form the Texas-Mexico border. Both states are building war chests for lawsuits over the water from Elephant Butte Reservoir.

Duncan contends there have never been meaningful good faith negotiations on the part of New Mexico with regard to water problems.

"They probably say the same thing about us," he shrugs.

The state line between Texas and New Mexico in this part of the country, he says, is artificial. The land is the same, the economies are similar and the needs of the citizens are the same, but they are divided nonetheless by state politics.

"I have a real angst about whether or not Texas and New Mexico can be water partners, given their history," Duncan says.

If Abraham's proposal proves to be feasible, it may help bring the states closer.

If nothing else, Duncan says, the plan has brought the northern and southern parts of this region of Texas together.

"Mr. Abraham put forth a compelling case that at least we ought to talk about these issues," Duncan says. "There's no harm in that."

Duncan says that with regard to the meeting in his office in Lubbock earlier this spring, no one committed to anything other than studying the proposal.

"We visited about the feasibility of the project," Duncan says.

He says the corollary benefit of the issue is making people in the area realize how important water is.

"We can't be split on the Ogallala Aquifer," he says.

He says the bottom line from the people he's talked to is they all share his interest in keeping water in the region. It's a near finite resource and has to be conserved.

Duncan says planning should also go beyond the water issue and include economic development.

Any economic development plan, he points out, depends upon available water.

"We have an infrastructure that is ripe for economic development," Duncan says, "but it's vulnerable to bad decisions."

He says he's glad that dairies are moving into several areas of the region, but he worries about how many the region can support with available water resources.

"We have to be careful to evaluate these projects," Duncan cautions.

He questions the capacity of the area to support an unlimited number of feeding operations.

"All confined animal feeding operations in this area are important economic factors," he says.

Duncan says West Texas has not enjoyed economic developments like the Interstate 35 corridor from Dallas to San Antonio.

He says there is a lot of zeal locally for the jobs that dairies and swine operations would bring to communities, but each proposed project needs to be reviewed with regard for longterm impact on water use.

"These are good things," he says, "but because we are so thirsty, we've got to be careful."

He says each project needs to be carefully evaluated, not just with regard to its impact on the local community, but also with regard to its impact on the region.

"We've got to plan properly," he insists, "and look to the future."

Duncan terms Pickens an interesting person and commends him for putting the issue of water marketing up for discussion.

"He has raised the water issue for the State of Texas," Duncan says. "He has gotten those issues out on the table with regard to water, and those are the issues we need to discuss. It's important for Texas to make some decisions about how we're going to do this."

That discussion, Duncan says, will go to the very root of the disputes — the rule of capture and longterm regulation of ground water, urban versus rural power, and money versus politics with regard to water.

"We need to discuss such things," Duncan says.

Duncan says the rural parts of the state have to solve urban problems when it comes to water so urban problems won't become rural problems.

"That's what I think the Mesa project really puts before us," Duncan says.

While Pickens has increased the level of debate, Duncan says water marketing still has a way to go before it plays out in the state.

"What will be done, I don't know," he admits.